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Author: Piotr Pszczółkowski
Over four years have passed since 10 April 2010 and the Smolensk disaster. This is a sufficiently long period to draw up a short list and analysis of the facts relating to what is Poland's greatest tragedy since Second World War II.
These are the facts:
1. Numerous errors were made in regards to the flight organisation, its preparation and security:
–– the lack of Polish oversight of the repairs and modifications carried out on the TU 154M (side No 101) in Samara by the Russians.
–– the splitting of the visits of the Polish Prime Minister and the late Polish President Lech Kaczyński to Smolensk (to attend the 70th anniversary of the Katyń Massacre) resulted in Russia's lowering of security levels for the visit on 10 April 2010, a decision taken at least the permission and consent of the Polish Prime Minister.
–– failure to obtain a formal decision from the Russians on the opening of the Smolensk North Airport. The body responsible for the failure to carry out the formalities in this respect is the Chancellery of the Prime Minister of Poland, which was at that time headed by Tomasz Arabski.
–– failure by the Ministry of Foreign Affairs officials to ensure compliance with the agreement of 14 December 1993, on the basis of which the flight of the late President Lech Kaczyński’s delegation was organised.
–– complete failure by the Government Protection Bureau to provide security for the visit of the Polish President. This is the only conclusion one may reach in view of the 20 shortcomings identified by experts of the Warsaw‑Praga District Prosecutors Office in the execution of a single security mission.
–– failure on the part of Polish authorities to carry out pyrotechnic security procedures at the Smolensk North Airport.
–– lack of contact between the Government Protection Bureau and the officials on board the plane. The Bureau did not know the number of the satellite telephone with which the TU 154M was equipped.
2. Numerous errors committed by the Government of Donald Tusk in selecting the legal framework to be applied in the investigation of the disaster, and the conduct of Polish officials in April 2010:
–– the conclusion of an international agreement by Donald Tusk and the Russian Prime Minister determining the rules and procedures for the investigation into the disaster of 10 April 2010 by way of an unprecedented – for such a document – oral agreement, without anything being put into written form.
–– the decision not to apply the terms of the already existing international agreement with Russia from 14 December 1993, was highly unfavourable to Polish interests.
–– the illegal – under Polish law – appointment of the Polish Committee for Investigation of National Aviation Accidents by the Ministry of Defence on 15 and 16 April 2004. The conditions for the appointment of the Committee set investigate the Smolensk disaster had not been fulfilled under law in force at the time. The Polish committee investigating the circumstances of the Smolensk crash was created and operated pursuant to provisions that are contradictory to aviation law. With the Miller's committee being illegal, its final report has no legal basis.
–– failure to draw assistance of NATO in investigating the causes of the disaster. The TU 154M flight was a military flight conducted by an aircraft belonging to the Polish Armed Forces, which themselves come under NATO structures. The supreme commander of the Polish Armed Forces, as well as Polish Army and NATO officers, were killed in the disaster. The disaster occurred on the territory of a non‑NATO country which is creating its own military alliances hostile to NATO.
–– the exclusion of EU Member States in assisting in the investigation with consent of the Polish Government delegation during a meeting with Vladimir Putin in Moscow.
––the coffins of the victims have been sealed in Russia and never allowed to be opened, once in Poland. The victims' families were prohibited to open the coffins in Poland.
–– exposing the victims’ families to the trauma of having to identify the bodies of their loved ones instead of carrying out genetic tests.
3. Numerous errors and breaches in the Polish investigation carried out to ascertain the causes of the Smolensk disaster:
–– failure to ensure unrestricted access to the most important material evidence (wreckage of the TU 154M, flight recorders and airport flight path recorders). In spite of this, the work of the Polish Miller Committee was brought to an end and it was announced that despite not having access to original pieces of evidence (still in Russian hands) the case could be closed by the Prosecutor.
–– failure by the Polish Committee for Investigation of National Aviation Accidents to carry out a reconstruction of the wreckage, and the publication of a report when at least one‑quarter of the aeroplane debris remained unexamined.
–– lack of involvement of Polish prosecutors present in Russia in the inspection of the crash scene in April 2010.
–– lack of involvement of Polish prosecutors and court medics in the inspection and post‑mortem examinations of the victims.
–– the decision not to carry out inspections, post‑mortem examinations, body identifications or to collect samples for tests in Poland as part of the investigation after the bodies have been transported and arrived. Entrusting, in the absence of any evidence ruling out Russia’s responsibility, the most important evidence concerning the death of the President and of the political and military elite, to Russian officials and citizens as part of international legal assistance arrangements.
–– communication errors made by the delegation of Polish prosecutors in Russia and the prosecutors carrying out the investigation in Poland. In April 2010, the latter were not even aware that their colleagues in the delegation to Moscow had not carried out an inspection or that they had not been involved in the post‑mortem examinations of the victims.
The aforementioned facts arising from the circumvention or improper application of the law were, for the most part, assessed and classified by the Polish prosecutors and courts as errors that did not merit any sanction. The scandalous legal situation surrounding the investigation resulting from the 'strategic decisions' has placed Poland among the group of countries violating democracy and democratic values and disregarding their own citizens.
For more than four years, not only has no one been held responsible for any of the aforementioned ‘errors’, but many of the officials responsible for those ‘errors’ have received promotions, lucrative positions and awards. Yet, the families of the victims are the only ones to have been severely punished and blamed for drawing attention to the truth and to the direct evidence. In the 21st century – in the age of DNA testing – the deeply traumatised loved ones of the victims were required to carry out the identification of the victims. In the Netherlands following the shooting‑down of the Malaysian Boeing, the well‑cared‑for families of the victims are waiting for the prosecutors and experts to establish the identity of the victims. No one there came up with the idea of psychologically mistreating the widows, orphans and relatives of those killed. They may rest assured that no one in the future will accuse them of misidentifying remains.
In today’s era, camouflage and strategies of error are being used as a new form of warfare. It is sufficient to follow current events in Ukraine: The ‘mistaken’ shooting‑down of the Malaysian aeroplane by the so‑called ‘pro‑Russian separatists’ is a true example of a strategy of ‘errors and camouflage’. The separatists are – according to the media – led by Russian officials and come not from Ukraine, but from Sakhalin.
In my opinion, the nature and frequency of errors that occurred during the investigation of the Smolensk disaster rule out the possibility of treating it as a series of unfortunate accidents. The war must be won with unpunished errors and egregious failures, and the undermining of democracy must be halted.
Author: Piotr Pszczółkowski, legal representative to a number of family members of the victims of the disaster of 10 April 2010